SIS FEDERAL . REPORTER.
illegal combination to restrict, monopolize, and ,controltmde and,commerce. It is not, however, necessary. to multiply authorities; dealing 'With .this question. They are numerous, and they all' clearly establish the doctrine that commerce among the several states and with foreign nations must be absolutely free and untrammeled, ,except as it may be regulated by congress; that no state law, with certain exceptions ;not necessary to be here stated, will be allowed to interfere with it, and no contract or agreement on the part of individuals, associations, or corporations will be permitted, directly or indirectly, to hinder or restrain its natural current or volume. IIi the light of the authorities and the principles they establish, it appears to me that the constitntion and by-laws of the Coal Dealers' Association and the agreement of the wholesale dealers with that association come within the prohibitions of the act of July 2, 1890, and they are therefore nnlawful. A temporary injunction will be prepared in accordance with this opinion.
HILL et al. v. HITE et aI. (OircuIt Court of Appeals, Eighth Cir.cuit.
No. 957. 1.
MOllTGAGE EXECUTED ON SUNDAY-ARKANSAS S'fATUTE.
February 14, 1898.)
Unqer the Arkansas statute making it a misdemeanor to labor, or to compel ali. apprentice or servant to do any labor, on Sunday, other than customary household duties of daily necessity, comfort, Or charity, a mortgage and notes executed on Sunday are void. 79 Fed. 826, affirmed.
FEDERAl, COURTS-FOLJ,OWING STATE DECISIONS.
The decisions of the highest court of a state as to the effect of its Sunday laws upon made and to be performed in the state wlll be followed by the federal courts. 79 Fed. 826,. affirmed.
EXECUTED ON . SUNDAY ACKNOWLEDGMENT DATED ANOTHER
Where a mortgage was actually executed OIl' Sunday, iUs not validated by the fact that the certificate of acknowledgment bears date of a day prior or subsequent thereto.
INVALID RENEWAL OF MORTGAGE-RIGHT TO ENFORCE ORIGlNAJ, MORTGAGE.
'Vhel'e, by reason of the invalidity of a renewal mortgage, the mortgagee has the right to enforce the antecedent mortgage, he cannot do so in a suit to foreclose the renewal mortgage.
FORECLOSURE OF MORTGAGE-HATIFICATION OF SUNDAy-PLEADING.
Where, to a mortgage sued on, the defense's set up that it was executed on Sunday, complainant cannot make a subsequent ratification available un· del' the general replication,. but must plead it by way of amendment in a suppleD;1ental bill.
Appeal frow the Circuit Court of the United States for the Eastern District of Arkansas. H. M. Hill, Thomas B. Harvey, and DeRoos Bailey'filed bi:-ief for appellants. . S. R. Oockrill and Ashley. Cockrill filed brief.for appellees.
Before.SANBORN and THAYER, Oircuit Ju.dges, anqPJ;IILIPS, . . . . . PHILIPS, District Judge. This is a suit ill equity brought· by appellants to fo·reclose a mortgage the payment of notes secured thereby. The mortgage is alleged to have been executed by appellees, HenryC. Hiteand Laura Hite, husband and wife, and the notes are alleged to have been.,executed by said Henry C. The mortgage on its face bears date of March 21, 1890, and purports. to have been acknOWledged on the22d day Of March, 1890. The answer of defendants interp.osed the following defens.es·: Fillst That defendant Henry C. Hite, at the time of the execution of the mortgage, was too drunk to comprehend what he was doing; that he was so irrational as not to understand the business he was .transacting, and did not know that he was executing the mortgage; 'and that these facts. were known to the complainants, who procured the execution of the mortgage. Second. That tbe 'real estate covered by the mortgage the homestead of de· fendants; and that the defendant wife executed the same under dure£:ls of her husband, against her free will and consent; and that these facts were known to complainants at the time the mortgage was executed. Third. That a designated portion of the land men· tioned in the mortgage was so imperfectly described as to be incapable of identification. Fourth. That the instruments in question were executed on Sunday. Other matters were pleaded in the answer i which are not necessary to be considered. ro this no rep· lication. was filed, under the impression, as we assmpe, that the Code of Arkansas, which does not require any replication to put in issue new matter pleaded in the answer, was applicable to this proceeding. This, however, was a misconception of an equity proceeding. State statutes regulating matters· of practice in courts of law or equity have no effect upon the jurisdiction or practice of the federal courts in equity cases. 1 Fost. Fed. Prac. § 6; Blease v. Garlington, 92 U. S. 8. But, as the parties went to trial and . proceeded upon the assumption that the matters pleaded in the answer were at issue, the failure to file the replication may be treat· ed as if. this requirement had been waived. The circuit court,. in passing upon the facts, found that by a vast preponderance of the evidence it was established-First, that the mortgage a.nd notes sued on were signed and on Sunday, arid tha.t these facts were known at the time of the execution of the mortgage to the trustee named therein, who was also the then acting agent of complaiIj.ants; second, that Lall;I;a Hite, the wife, executed and acknowl· edged the mortgage under duress, and that thIS fact was known to the trustee and agent. The court made no finding. on the question of fact as to whether the defendant Henry C. Rite was intoxicated. . On examination or all the bearing upon the issue, weare entirely satisfied that the conclusion reached by the Circuit that the. ·mortgage and notes on Sunday, llgent had
rect: 'It is 'by 'the great preponderance of 'evidence. The statute of that state, in force at the time of the execution' of said tnstruments, declared that:
· or Sun!lay be found laboring, ()r shall or servant to labor, or to perform other service than the compel his customary household uuties of daily' 'necessity, comfort or charity; on conviction _ , thereof shall be finea $1:00 for eachseparateoffe.nse."
" .. ,::'
The ,Stipl'en1e court of the state has unifoMIlly held that this statute ntl\tres void all,' contra.cts] inclUding notes and mortgages, executed On Sunday. Tucker V. West, 29 Ark. 386; Merritt v. RobB5 A'rk. 483; Quarles v. State, 55 Ark. 10, 17 S. W. 269. of the highest court of the state respecting a contract ID.!lM.,and ',to be executed in respect of the effect'thereon of are on the federal courts. Bucherv. Cheshh'e, )lailroad Go.; 125 ,U.$,555; 8 Sup. Ct. 974., ,Coumiel for aph?weve,r, as the certificate of mentto said thortgage, was dated as of Sl:iturday, the day preVIOUS to' tpe,'Sundayin questiort; it is ,unimpeachable. It fs quite imwhat date taking the ackn,owledgment gave to ':rhe mortgage did not become effective until it was and delivered; .nor is the ackUQwledgIllent evidence of Freeman v. Peay, 23 Ark. 439; l' Jones,' Mortg.. § 5Q1. The officer ,could not give effect to the void instru,ment, out his acknowledgment as. of the day preceding of,' the ,My fJucceeding and 4elivery of the instrument: dee(l, 'if llofexecuted':on Sunday, was good as between the parties ftmri the time of its' execution and 'delivery without acknowledgment. ,The result from the foregoing facts found by the CQurt, as matter of law, is that'the contract sued' upon is void; and it is therefore l:uluece8Sary ,Jo determine' tn..e 'other matters of defense -in terposed by the ,answer. It is insisted, however, in the ibrief of appellants' counsel, that this defense should not be sustained, because it is cliiimed,'thatthe eviden'ce sho-wsthat the mortgage WM based upon. a mdst' 'meritorious consideration, and that defendant Henry C. Hi'tilifterwards recognized 'and . ,ratified the existence and validity I ,. ," . ' ,",. . . . .. ,of the '1n0rtgag-e and the debts' thereby secured. It ddes 'appear from 'evidence in the case' that the notes and the mortgage in qUeStioh W given in renewal ofalj. 'antecedent mortgage, executeil by l'l; otithe land in question to the complainants; to secure a corre;>p(mding debt. ,Tile complainants, it may be conceded, might proce ded,n'otwithsraiJ.'dii:lgthe renewal of the notes and D;lort· foreclpsethe mortg-age, as .the of a new note and mortgage was,lnot payment arid satIsfaction of tile pre110te, andmortg4ge, in the absence of' direct proof that the later' and rnortgage were given in extingUishment of the prE;existing debt. Geib v.Reynolds, 35 Minn. ,335, 28 N. W. \j23, '465; 'Oliphant 'v" Eckerley, 36 Ark. 69; 'Sltlliif 1,1 Rice, ,,41' Gregory' v. .'20, Wend'. 17. "ThIs would be especially, so wnere, the' renew'af is "llialuitl "prohibitum. ,But the to 'this' is' tha:t'; the' 'sUit" is' tiot' 'basedl.Upon' the pte-exiSting
UNITED STATES V.ADDYST0!S' PIPJl;,.t: STEEL CO.
but is bl',ought to enforce the mortgage, of Ma'rch 23, '1890. It is also to be conceded, to the eomplainants that th¢re is evidence in tbji! record tending to show that after the,execution of the mort· gage)n question, for a number of years, the defell,dant Henry C. Hite, by his letters written to the complainants, and by his course of dealing with them, recognized the existence and validity of the debt and mortgage in qnestion, and that he was credited with sums $2,000 as payments on the, first of the notes described in fhe mortgage, the proceeds of shipments of cotton made by him from time to time to the complainants. Were it conceded that this would be sufficient to infuse new life into the mortgage, the complainants have not framed their p,leading so as to make this fact avaiHtble. Under equity practice, where th,eanswer, as in this case, sets up new matter in bar or avoidance of the cause of action sued on, if the complainant would interpose any matter supervenient, such as a ratification, in avoidance of the new matter set up in the answer, he should reply the new matter by way of amendment in a supplemental bill; for the general replication, "which alone is now used in equity, is a general denial of the truth of the defendant's plea or answer, and of the sufficiency of the matter alleged in it, to bar the plaintiff's suit, and an assertion of the truth of the sufficiency of the bill. * * * In the room of special replications, amendments of the bill have been substituted, and the plaintiff must now always be relieved according to the form and matter, either original or by ameI1 dmerit, contairied in his bilL" Story, Eq" PI. (10th Ed:) § 878. ' Assuming, as we have, that the case should be treated as if a gen· eralreplication bad been interposed to the answer, the status of the pleadings is that the new matter-pleaded in the answer .stood denied, aild:the making and of the mortgage in questionwaa reaffirmed; and therefore the, only issues involved were and are, was the mortgage executed and delivered as in the bill? and, second, was it It, fact that the same was executed and delivered OD Sunday?' The contention, therefore, that ,not'Yithsta.ndingthe con· tract in question was entered into on Sunday, in violation of the statute of the state, yet, by reason of defendant's subsequent acknowledgment and ratification of the contract, a, cause of action on the mortgage exists, is dehors the, issues presented by, the plead. ings.:Bank Y. Arnistrong,62 Mo. 59 ; Currier v. Lowe, 32 Mo. 203; Wade 'v.ij:ardy, 75 Mo. 399. The decree 'of the circuit courth. affirmed. '
UNITED STATES v. ADDtS,TON PIPE & STEEL CO. et al. (CircUit Court 'or 'Sixth February 8, 1898.)
. Contracts that were in unreasona):>le restraint of trade at CQIjJillOn law were not tmlawfril lh the sense criminal, or all giving rise to an for damal$es to one but were, simply void, and DOt enforceable., Theetrect Q( liUch